Foreign-owned start-up companies seeking to establish their headquarters in the United States received a bit of positive news on Friday when the U.S. District Court for the District of Columbia ruled that the Trump Administration's delay of an Obama-era International Entrepreneur program was unlawful.

The International Entrepreneur Rule was intended to serve as a pathway for foreign entrepreneurs who meet certain benchmarks to apply for temporary "parole" status - that is, temporarily stay in the country without a visa if their company demonstrated the potential for rapid growth and job creation. This "entrepreneur parole" would offer immigration solutions for individuals who do not qualify for other visas, such as an E-2, to actively manage their businesses.

As Green and Spiegel previously posted on July 17, 2017, the U.S. Department of Homeland Security (DHS) delayed and intended to effectively dismantle the International Entrepreneur Rule ("IER") promulgated by the Obama Administration.  Although the rule was proposed by the Obama administration on August 31, 2016, and set to go into effect on July 17, 2017, the DHS, under Trump, swiftly shelved it citing the Trump Administration's Executive Order 13767 – purporting to prescribe improvements to border security and immigration enforcement.

Last Friday, Federal Judge James Boasberg ruled in favor of a lawsuit brought by the National Venture Capital Association (NVCA), in which the NVCA argued that the delay violated the Administrative Procedure Act's requirements as the DHS did not provide notice or solicit advance comment from the public about the rule change.

Although the Administration must begin accepting applications under the proposed rule, as of the date of this writing, the IER Form (Form I-941) has been created but not implemented by USCIS.  As such, there is no formal mechanism by which foreign nationals may apply. Green and Spiegel will be closely monitoring developments on this issue.  If your company was affected by the previous delay, or if you feel you may be eligible under the International Entrepreneur Rule, contact us today to discuss potential strategies.

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